Homeland Security Trust Fund Act of 2007

Mr. President, once again I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the high Court to permit television coverage of its open sessions unless it decides by a majority vote of the Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter.

The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. The Supreme Court makes pronouncements on Constitutional and Federal law that have a direct impact on the rights of Americans. Those rights would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions.

In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States entitled Richmond Newspapers v. Virginia. In this case, the Court noted that a public trial belongs not only to the accused but to the public and the press as well and recognized that people now acquire information on court procedures chiefly through the print and electronic media.

That decision, in referencing the electronic media, appears to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. I should note that the Court could, on its own initiative, televise its proceedings but has chosen not to do so, which presents, in my view, the necessity for legislating on this subject.

When I argued the case of the Navy Yard, Dalton v. Specter, back in 1994, the Court proceedings were illustrated by an artist's drawings-- some of which now hang in my office. Today, the public gets a substantial portion, if not most, of its information from television and the internet. While many court proceedings are broadcast routinely on television, the public has little access to the most important and highest court in this country. Although the internet has made receipt of the Court's transcripts, and even more recently, audio recordings, more widely accessible, the public is still deprived of the real time transmission of audio and video feeds from the Court. I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices. I think the American people will gain a greater respect for the way in which our High Court functions if they are able to see oral arguments.

Justice Felix Frankfurter perhaps anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: ``The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system.''

When I spoke in favor of this legislation in September of 2000, I said, ``I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process.'' I reiterated those sentiments in September of 2005 when I re-introduced an identical bill. Today, I believe the time has come and that this legislation is crucial to the public's awareness of Supreme Court proceedings and their impact on the daily lives of all Americans.

I pause to note that it was not until 1955 that the Supreme Court, under the leadership of Chief Justice Warren, first began permitting audio recordings of oral arguments. Between 1955 and 1993, there were apparently over 5,000 recorded arguments before the Supreme Court. That roughly translates to an average of about 132 arguments annually. But audio recordings are simply ill suited to capture the nuance of oral arguments and the sustained attention of the American citizenry. Nor is it any response that people who wish to see open sessions of the Supreme Court should come to the Capital and attend oral arguments. For, according to one source: ``Several million people each year visit Washington, D.C., and many thousands tour the White House and the Capitol. But few have the chance to sit in the Supreme Court chamber and witness an entire oral argument. Most tourists are given just three minutes before they are shuttled out and a new group shuttled in. In cases that attract headlines, seats for the public are scarce and waiting lines are long. And the Court sits in open session less than two hundred hours each year. Television cameras and radio microphones are still banned from the chamber, and only a few hundred people at most can actually witness oral arguments. Protected by a marble wall from public access, the Supreme Court has long been the least understood of the three branches of our Federal Government.''

In light of the increasing public desire for information, it seems untenable to continue excluding cameras from the courtroom of the Nation's highest court. As one legal commentator observes: ``An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself.''

Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there was, in the views of many, simply a difference of opinion as to what is preferable public policy, but the Court determines novel issues such as whether AIDS is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. The current Court, like its predecessors, hands down decisions which vitally affect the lives and liberties of all Americans. Since the Court's historic 1803 decision, Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade (1973), the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg, 1997, the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance.

In the Seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia, 1972, the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision led Georgia and many States to amend their death penalty statutes and, four years later, in Gregg v. Georgia, 1976, the Supreme Court upheld Georgia's amended death penalty statute.

Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sanford, 1857--better known as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave.

The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War.

The Supreme Court has also ensured adherence to the Constitution during more recent conflicts. Prominent opponents of the Vietnam War repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justice Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert.

In New York Times Co. v. United States, 1971--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war.

In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was then followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Gamer v. Louisiana, 1961, Burton v. Wilmington Parking Authority, 1961, and Peterson v. City of Greenville, 1963.

In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, familiar names in the lexicon of lawyerly discussions concerning watershed Supreme Court precedents, have been joined with similarly important cases like Hamdi, Rasul and Roper--all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the nation's commitment to constitutional principles even during times of war and uncertainty. Similarly, in Rasul v. Bush, 2004, the Court held that the Federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. In Roper v. Simmons, a 2005 case, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments.

When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution, reason and the application of legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land.

Since the beginning of its October 2005 Term when Chief Justice Roberts first began hearing cases, the Supreme Court has issued 11 decisions with a 5-4 split out of a total of 93 decisions. It has also issued 4 5-3 decisions in which one justice recused. Finally, it has issued a rare 5-2 decision in which Chief Justice Roberts and Justice Alito took no part. In sum, since the beginning of its October 2005 Term, the Supreme Court has issued l6 decisions establishing the law of the land in which only 5 justices explicitly concurred. Many of these narrow majorities occur in decisions involving the Court's interpretation of our Constitution--a sometimes divisive endeavor on the Court. I will not discuss all 16 thinly decided cases but will describe a few to illustrate my point about the importance of the Court and its decisions in the lives of Americans.

The first 5-4 split decision, decided on January 11, 2006, was Brown v. Sanders. In this case the Court considered ``the circumstances in which an invalidated sentencing factor will render a death sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the jury's weighing process.'' A majority of the Court held that henceforth in death penalty cases, an invalidated sentencing factor will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. The majority opinion was authored by Justice Scalia and joined by Chief Justice Roberts and Justices O'Connor, Kennedy and Thomas. Justice Stevens filed a dissenting opinion in which Justice Souter joined. Similarly, Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined.

Last November the Supreme Court decided Ayers v. Belmontes, a capital murder case in which the Belmontes contended that California law and the trial court's instructions precluded the jury from considering his forward looking mitigation evidence suggesting he could lead a constructive life while incarcerated. In Ayers the Supreme Court found the Ninth Circuit erred in holding that the jury was precluded by jury instructions from considering mitigation evidence. Justice Kennedy authored the majority opinion while Justice Stevens wrote a dissent joined by three other justices.

Other 5-4 split decisions since October 2005 include United States v. Gonzalez-Lopez, concerning whether a defendant's Sixth Amendment right to counsel was violated when a district court refused to grant his paid lawyer permission to represent him based upon some past ethical violation by the lawyer, June 26, 2006; LULAC v. Perry, deciding whether the 2004 Texas redistricting violated provisions of the Voting Rights Act, June 28, 2006; Kansas v. Marsh, concerning the Eighth and Fourteenth Ariiendments in a capital murder case in which the defense argued that a Kansas statute established an unconstitutional presumption in favor of the death sentence when aggravating and mitigating factors were in equipoise, April 25, 2006; Clark v. Arizona, a capital murder case involving the constitutionality of an Arizona Supreme Court precedent governing the admissibility of evidence to support an insanity defense, June 29, 2006; Garcetti v. Ceballos, a case holding that when public employees make statements pursuant to their official duties they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, May 30, 2006.

The justices have split 5-3 4 times since October 2005.

In Georgia v. Randolph, March 22, 2006, a 5-3 majority of the Supreme Court held that a physically present co-occupant's stated refusal to permit a warrantless entry and search rendered the search unreasonable and invalid as to that occupant. Justice Souter authored the majority opinion. Justice Stevens filed a concurring opinion as did Justice Breyer. The Chief Justice authored a dissent joined by Justice Scalia. Moreover, Justice Scalia issued his own dissent as did Justice Thomas. In Randolph, there were six opinions in all from a Court that only has nine justices. One can only imagine the spirited debate and interplay of ideas, facial expressions and gestures that occurred in oral arguments. Audio recordings are simply inadequate to capture all of the nuance that only cameras could capture and convey.

In House v. Bell, a 5-3 opinion authored by Justice Kennedy, (June 12, 2006), the Supreme Court held that because House had made the stringent showing required by the actual innocence exception to judicially-established procedural default rules, he

could challenge his conviction even after exhausting his regular appeals. Justice Alito took no part in considering or deciding the House case. It bears noting, however, that if one justice had been on the other side of this decision it would have resulted in a 4-4 tie and, ultimately, led to affirming the lower court's denial of House's post-conviction habeas petitions due to a procedural default.

In Hamdan v. Rumsfeld, a 5-3 decision in which Chief Justice Roberts took no part, the Supreme Court held that Hamdan could challenge his detention and the jurisdiction of the President's military commissions to try him despite recent enactment of the Detainee Treatment Act. A thin majority of the justices supported the decision despite knowledge that the DTA explicitly provides ``no court . . . shall have jurisdiction to hear or consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at Guantanamo Bay.'' In deciding the merits, the Court went on to hold that the President lacked authority to establish a military commission to try Hamdan or others without enabling legislation passed by both houses of Congress and enacted into law. This case was one of a handful of recent cases in which the Supreme Court released audiotapes or oral arguments almost immediately after they occurred. Yet it would have been vastly preferable to watch the parties' advocates grapple with the legal issues as the justices peppered them with jurisdictional, constitutional and merits-related questions from the High Court's bench.

In another fascinating 5-3 case, Jones v. Flowers, April 26, 2006, Supreme Court considered whether, when notice of a tax sale is mailed to the owner and returned undelivered, the government must take additional reasonable steps to provide notice before taking the owner's property. In an opinion by Chief Justice Roberts, the Court held that where the Arkansas Commissioner of State Lands had mailed Jones a certified letter and it had been returned unclaimed, the Commissioner had to take additional reasonable steps to provide Jones notice. Justices Thomas, Scalia and Kennedy dissented and Justice Alito took no part in the decision.

Though Jones v. Flowers involved the Due Process Clause of the Fourteenth Amendment, not the Takings Clause of Fifth Amendment, one could draw interesting analogies to the Court's controversial 2005 decision in Kelo v. City of New London. In Kelo, a majority of the justices held that a city's exercise of eminent domain power in furtherance of a privately initiated economic development plan satisfied the Constitution's Fifth Amendment ``public use'' requirement despite the absence of any blight. Four justices dissented in Kelo and public opinion turned sharply against the decision immediately after it was issued.

It's possible, though merely speculation, that the public ire aimed at Kelo informed what became a majority of justices in Jones v. Flowers. In a passage by Chief Justice Roberts, the Court notes, ``when a letter is returned by the post office, the sender will ordinarily attempt to resend it, if it is practicable to do so. This is especially true when, as here, the subject matter of the letter concerns such an important and irreversible prospect as the loss of a house.''

Not only lawyers but all homeowners could benefit from knowing how the Court grapples with legal issues governing the rights to their houses. My legislation creates the opportunity for all interested Americans to watch the Court in action in cases like these. From his perch on the High Court one justice has been heard to contend that most Americans could care less about the arcane legal issues argued before the Court. But as elected representatives of the people we must endeavor to view America from a bottoms-up, rather than a top-down perspective.

Regardless of ones view concerning the merits of these decisions, it is clear that they frequently have a profound effect on the interplay between the government, on the one hand, and the individual on the other. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less esoteric and more accessible to common men and women who are so clearly affected by its decisions.

Given the enormous significance of each vote cast by each justice on the Supreme Court, televising the proceedings of the Supreme Court will allow sunlight to shine brightly on these proceedings and ensure greater public awareness and scrutiny.

In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the more real the opportunity for public observation the greater the understanding and trust. As the Supreme Court observed in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.''

It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor.

Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court.

It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.''

Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: ``Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as surrogates for the public. [Media presence] contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system.''

To be sure, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media over another. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: ``Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.''

However, in the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion.

In its 1981 opinion in Chandler v. Florida, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved

through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today.

Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself.

On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing titled ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill S. 721, legislation introduced by Senators Grassley and Schumer that would give Federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, the late Judge Edward R. Becker, then- Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a Federal judge, a State judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government.

On November 9, 2005, the Judiciary Committee held a hearing to address whether Federal court proceedings should be televised generally and to consider S. 1768, my earlier version of this bill, and S. 829, Senator Grassley's ``Sunshine in the Courtroom Act of 2005.'' During the November 9 hearing, most witnesses spoke favorably of cameras in the courts, particularly at the appellate level. Among the witnesses favorably disposed toward the cameras were Peter Irons, author of May It Please the Court, Seth Berlin, a First Amendment expert at a local firm, Brian Lamb, founder of C-SPAN, Henry Schleif of Court TV Networks, and Barbara Cochran of the Radio-Television News Directors Association and Foundation.

The notable exception was the Honorable Judge Jan DuBois of the Eastern District of Pennsylvania, who testified on behalf of the Judicial Conference. Judge DuBois warned of problems particularly at the trial level, where witnesses who appear uncomfortable because of cameras might seem less credible to jurors. I note, however, that appellate courts do not appear susceptible to this criticism because there are no witnesses or jurors present for appellate arguments.

The Judiciary Committee considered and passed both bills on March 30, 2006. The Committee vote to report S. 1768 was 12-6, and the bill was placed on the Senate Legislative Calendar. Unfortunately, due to the press of other business neither bill was allotted time on the Senate Floor.

During their confirmation hearings over the past two years, Chief Justice John Roberts stated he would keep an open mind on the issue and Justice Alito stated that as a circuit judge he unsuccessfully voted (in the minority) to permit televised open proceedings in the Third Circuit. I applaud the fact the new Chief Justice has taken steps to make the Court more open and to ensure the timely publication of audio recordings of the arguments as well as the written transcripts.

In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is clearly no constitutional prohibition against such legislation.

Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office.

Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the appellate jurisdiction of the Court, it provides that such jurisdiction exist ``with such exceptions and under such regulations as the Congress shall make.''

Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal in my view given the relatively minor ensure that Supreme Court justices would undertake through television appearances. Also, any concerns could be mitigated by focusing only on the attorneys presenting arguments. There is no requirement that the justices permit the cameras to focus on the bench.

As I explained earlier, the Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings.

This legislation embodies sound policy and will prove valuable to the public. I urge my colleagues to support this bill.

I ask unanimous consent that the text of the bill be printed in the Record.

There being no objection the bill was ordered to be printed in the Record, as follows:

Madam President, today I wanted to speak on an issue I speak on many times, drug safety. Today is a little different approach to it, though, because earlier today the Committee on Health, Education, Labor, and Pensions began marking up S. 1082, the Food and Drug Administration Revitalization Act. For the first time in almost a decade we have an opportunity to reform, to improve, and to reestablish the FDA as an institution committed to making patient safety as important as bringing new drugs to the market.

S. 1082 presents a framework for the future of drug and device safety. I am gratified by some of its current contents and I express some disappointment about others. That is the purpose of my speaking to my colleagues.

First, I am gratified the bill attempts to address some of the overarching issues plaguing the FDA that have been repeatedly revealed by the investigations I conducted of the FDA over the last 3 years. In particular, S. 1082 takes a number of steps to address the issue of transparency, the issue of accountability, and the issue of respect for the scientific process that has been lacking for some time at the FDA. S. 1082, for example, requires that within 30 days of approval, the action package for approval of a new drug must be posted on the FDA's Web site. This requirement, however, only applies to a drug with an active ingredient that has not been previously approved by the FDA. The action package would contain all documents generated by the FDA related to the review of a drug application, including a summary review of all conclusions and, among other things, any disagreements and how these disagreements were resolved. If a supervisor disagreed with the review, then the supervisor's opposing review would be available to the public. And to address the many allegations that the Food and Drug Administration safety reviewers are sometimes coerced into changing their findings, I greatly welcome the provision that states a scientific review of an application is considered the work of the reviewer and must not be changed by FDA managers or the reviewer once that review is final.

The bill also takes steps to bring more resources to the FDA for drug safety, another matter I have been discussing for years. In addition, the bill requires the Food and Drug Administration's Drug Safety and Risk Management Advisory Committee to meet

at least two times a year to address safety questions and to make recommendations regarding post-market studies.

I am also heartened to see that the bill incorporated several elements from the Dodd-Grassley bill entitled the Fair Access to Clinical Trials Act of 2007. S. 1082 ensures that the clinical trial registry includes trials of devices approved by the FDA. The bill requires a drug sponsor to certify at the time of the submission of a drug, biologics, or device application to the agency, that the sponsor has met all of the clinical trial registry requirements.

Last but not least, S. 1082 attempts to give the Food and Drug Administration some teeth by requiring specific civil penalties, monetary penalties for submission of false certification, and false or misleading clinical trial information.

These are, in my mind, some of the good things that are proposed in S. 1082. I wish to thank Chairman Kennedy and Ranking Member Enzi in this regard.

I hope additions such as these, which strengthen S. 1082, will make it through the HELP Committee's vote as the committee considers further changes. As I said earlier, I am both gratified and disappointed by the contents of S. 1082.

I turn now to some of what I consider to be lacking in the bill, that in my mind fails to address some of the issues that are critical to reestablishing the FDA's mission and putting John Q. Public and not PhRMA at the helm of the FDA.

I commend the HELP Committee's attempt to ensure that the office responsible for post-market drug safety is involved in, among other things, decisions made regarding labeling and post-market studies by making specific references to that office throughout S. 1082. However, the bill does not address the outstanding critical problem that the office responsible for post-market drug safety lacks the independence, lacks the authority to promptly identify serious health risks and take necessary steps that will protect the public.

As I think we all agree, the Federal Drug Administration is in desperate need of major overhaul. Over the past 3 years, my investigations have demonstrated that the depth and the breadth of the problems plaguing the FDA on both the drug and device side ought to stand out in everybody's mind as something Congress ought to be dealing with. Senator Dodd and I have written two bills that we believe will greatly enhance drug and device safety and improve transparency at the FDA and, most importantly, prevent another Vioxx debacle.

The Federal Drug Administration's Safety Act of 2007 and the Fair Access to Clinical Trials Act of 2007 are intended to address some of the problems plaguing the FDA at its very core. Those are the bills that are the Grassley-Dodd bill and the other is a Dodd-Grassley bill.

Let me be clear: Big PhRMA does not like these bills. FDA management does not like these bills. Lobbyists are spending hours upon hours lobbying against these bills. The Food and Drug Administration Revitalization Act does not embrace all the critical elements of the Dodd-Grassley and the Grassley-Dodd bill.

Let me ask each and every Member of the Senate the following: What is wrong with establishing a separate center within the FDA--not outside the FDA, within the FDA--with its only job being that of a watchdog for those drugs already in the market? What is wrong with supporting a group of committed FDA scientists who only watch for serious adverse effects that may pop up only occasionally, perhaps only 1 in 10,000 or 1 in 20,000? What is wrong with ensuring that all clinical trial results, regardless of their outcome, are available to the scientific community, health care practitioners, and the public? What is wrong with supporting a clinical trial registry and results database that also requires sponsors to reveal their negative trials? And what is wrong with giving the FDA strong enforcement tools to combat bad players?

I propose there is nothing wrong with any of these proposals, particularly the proposals that a new, separate, and independent center be created to address post-market surveillance, a proposal supported by Senator Dodd and me, not once but twice.

I have heard the naysayers and the naysayers' many bogus arguments about why a new post-market drug safety center will not work. The arguments range from the absurd to the ridiculous.

I will also address a few of those for you today. One argument is the creation of a separate center will slow down the drug approval process and delay much needed drugs from those who need them.

This argument is, in plain English, a nonstarter. Why? Because this new center will be devoted to keeping an eye on drugs once they are already on the market, postmarketing surveillance.

Another argument is that a new postmarket drug safety center will create an unmanageable bureaucracy at the FDA. That is a bogus argument. Why would taking an already existing office at the Food and Drug Administration, moving it on an organizational chart and providing it with new authority to watch for unknown and unexpected adverse events be bad? It does not make sense.

These arguments at first blush made an impression on Dr. Steven Nissen, chair of the Department of Cardiovascular Medicine at Cleveland Clinic and immediate past president of the American College of Cardiology, who was not an original supporter of establishing a separate center within the FDA to address postmarketing surveillance.

But, over time, his views have changed. Dr. Nissen probed more, evaluated the facts more, and as he talked more to on-the-ground FDA staff members, Dr. Nissen changed his mind and told the American public so.

Dr. Nissen recently sent me a letter stating that not only does he support the Fair Access to Clinical Trials Act but also the Food and Drug Administration Safety Act. In other words, Dr. Nissen said:

In particular, I support the creation of a new independent

center within the FDA called the Center for Post-Market

Evaluation and Research for drugs and biologics. Although I

had previously expressed some concern about creating this

center, I have become convinced that the separation of post-

market surveillance from the Office of New Drugs represents

the best opportunity to improve the performance of the FDA in

handling drug safety issues.

I ask unanimous consent to have that letter printed in the Record.

Coupled with Dr. Nissen's letter of support, I also received a letter from Dr. Curt Furberg, professor of public health science at

Wake Forest University School of Medicine. Dr. Furberg is not only a professor of medicine, but he is also a member of the Food and Drug Administration Drug Safety and Risk Management Advisory Committee.

Dr. Furberg knows the FDA from the inside, and you might say he knows it inside-outside, in and out. In fact, even Dr. Furberg has written me to say he is supportive of creating a new center, and he is particularly supportive of creating a new enforcement tool to be used against bad players in the drug industry.

I also have that letter and would ask unanimous consent to have it printed in the Record as well.

Madam President, if these two thoughtful leaders can come forward and support a new center that is devoted to watching drugs once they are on the market so that American consumers and their doctors know about a problem promptly, what is wrong with that? That is why I hope the HELP Committee will take a second look at the Dodd- Grassley bill. We have seen time and again that the FDA is not as good at this function as it should be. However, the reality is that the FDA needs to perform this function well because lives of American citizens and maybe around the world depend on it.

I wish to see a bill passed that prevents another Vioxx debacle. This Congress has an opportunity to make meaningful and positive changes. Let's not allow that opportunity to slip through our fingers.

Medicare

Madam President, I have another set of remarks that I wish to make dealing with the issue that we had before the Senate today, and that we had a cloture vote on, S. 3. Members on the other side of the aisle, including the assistant majority leader, said that Republicans do not want this debate. What are they talking about, do not want a debate about anything dealing with Medicare prescription drugs and all those sorts of things?

This body has debated the so-called prohibition on Government negotiation. The Senate had four votes on this issue. What is rather amusing to me about the statement that we do not want the debate is that they did not seem to want the debate when the Senate considered S. 1.

S. 1 was the Senate version of the Medicare drug law. That bill had a noninterference clause in it just like the current law does. It is that clause that the other side has distorted to come up with the absurd claim that no negotiations occur under the Medicare drug benefit. Not once, I repeat, not once during the entire time that S. 1 was on the Senate floor in the year 2003 did anyone on the other side of the aisle bring up this issue.

That is because this is not an issue of merit, it is simply one born out of political pandering. The assistant majority leader also talked about how Medicare should look like the VA because the VA seems to get lower prices.

The VA gets lower prices because the Government passed a law to guarantee itself an automatic discount that no one else can get. By law, that price is automatically 24 percent less than the average price paid by basically all non-Federal purchasers. That is not negotiation, that is a federally mandated price dictation, or you might call it a 24-percent discount, but it is federally mandated.

I agree that the logical question then is: Why not have Medicare get that price? Experts who testified at the Senate Finance Committee, even the VA itself at a 2001 hearing before the Committee on Veterans' Affairs gave us the answer: They said that giving the Medicare VA prices will increase prices for veterans. Now, why would anybody in this body want to increase prices for veterans?

Now I wish to turn to how the VA uses its own pharmacy benefit manager or PBM as we refer to them. The pharmacy benefit manager for the VA--the VA has one. In 1995, as part of an effort to better manage and monitor drug usage and purchasing and utilization oversight across the entire Veterans' Administration, the VA established its own benefit manager.

The VA did it because it wanted to have its pharmacy operation work similar to the private sector. They did it because, as stated in the VA news release, they wanted to maximize a developing business strategy in the private sector. That business strategy was getting lower prices on drugs in the private sector.

So here we have people holding out the VA as a model, which uses its own PBM to negotiate, and at the same time they are saying: Using PBMs in Medicare is wrong.

Remember, that process has brought 35-percent lower costs on the 25 most used drugs by seniors under the Medicare Program. I cannot help but see how that is a bit of irony when people say they want Medicare to negotiate like the VA negotiates.

Well, the VA negotiates through its PBM. So the funny thing is, the VA actually negotiates similar to Medicare drug plans. You heard that right, but let me state it again. The VA system for negotiating is just like the one already used by Medicare through prescription drug plans that seniors join.

If the VA's PBM looked at itself in the mirror, it would see a Medicare drug plan's PBM staring right back at it. There is another important difference between the VA and Medicare. The VA prescription drug benefit is just one part of the VA's health care delivery system. It is a very different system than Medicare.

The VA system requires veterans to use VA hospitals, to use VA physicians, to use the VA national formulary, to use their pharmacies, and to use their mail order pharmacy. Now, don't get me wrong. The VA has a good system that works for veterans. But what it comes down to is choice. So I have a chart I want you to look at. Under the Medicare prescription drug benefit, beneficiaries have choices. They can choose the plan they want, a plan that covers all their medicines. They can choose the doctor and the hospital they want. They can go to their local pharmacy.

Even the VA recognizes this fact. On its own Web site in a ``frequently asked questions'' page, the VA does not recommend that veterans cancel or decline coverage in Medicare because a veteran may want to consider the flexibility afforded by enrolling in both the VA plan and the Medicare plan.

For example, veterans enrolled in both programs may obtain prescription drugs that are not on the VA formulary if prescribed by a non-VA physician and filled at a local pharmacy.

Making all Part D programs look like the VA and its formulary then will severely restrict access and will severely restrict choice to the 44 million Medicare beneficiaries. Now, the other side says: No. No. We are not going to limit access to drugs. Yes, as I pointed out this morning, every Democrat on the Finance Committee cast a vote against my amendment that would have prohibited the Secretary from creating a national preferred drug list.

I had thought, for all the talk about not allowing a Government formulary, the proponents of S. 3 would embrace a

provision banning preferred drug lists. If they do not want to limit beneficiaries' access to drugs, my amendment should have been easy for them to support.

But by voting against my amendment, they were voting in favor of the Government setting a preferred drug list. Now, the preferred drug list might sound like a good thing, but in reality it is not. It is a Government-controlled list of drugs that you can or cannot have because the Government is not going to pay for what they say you cannot have.

The preferred drug list then operates similar to a formulary. In my opinion, if it walks like a duck, if it quacks like a duck, then it is a duck. But that is not what the courts have found. So what does that mean for Medicare beneficiaries? It means that even though S. 3 prohibits the Secretary from using a formulary, it does not prohibit the Secretary from using a preferred drug list. It is clear now then from all this analysis and their votes on this amendment that supporters of this Senate bill want the Government to set a preferred drug list. They want the Government to determine for what seniors can get coverage.

A number of States have implemented preferred drug lists. Michigan, for example, has a preferred drug list. Here is what the Kaiser Family Foundation found in a 2003 case study on that preferred drug list:

Fearing opposition from the pharmaceutical industry, the

State sought virtually no input from providers, pharmacists,

beneficiaries and manufacturers.

Continuing the quote:

Ultimately the department [meaning Michigan] made only a

few changes to the list of drugs on the Michigan preferred

drug list in response to beneficiaries and provider concerns.

Both the Illinois House and the Illinois Senate resolutions were introduced in 2002 to establish a committee to oversee that State's preferred drug list.

The resolution noted that the creation of Illinois' preferred drug list ``could lead to unintended consequences such as inferior health care, increased hospitalizations and emergency care, increased admissions into long-term care, and unnecessary patient suffering and potentially death.''

In a statement about this bill, S. 345, the assistant majority leader said that: The Medicare-administered plan envisioned under this bill would have a preferred drug list.

So this morning I talked about fitting all of the pieces of a legislative puzzle together.

Here are some of those pieces: The bill approved by the House allows price controls. The bill that was before the Senate does not prohibit the Secretary from dictating the drugs beneficiaries can get. We have Senator Durbin's statement about his own bill and how he envisioned a preferred drug list.

So despite claims by those on the other side of the aisle, this bill is not harmless to senior citizens. If this Trojan horse attack succeeds in a Government takeover of the drug benefit, here is what seniors can look forward to: They can look forward to fewer choices. They can look forward to fewer opportunities to choose a plan that best meets their needs--the needs of 44 million senior citizens in America.

If the Senate bill were to pass, seniors will get only the drugs some Government bureaucrat determines they can have. All other Americans will see the prices of their prescription drugs going up. That is not me saying it. Professor Scott Morton of Yale University testified before the Senate Finance Committee to that mathematical fact, that if you have 44 million senior citizens, and you have the Government dictating the price, when you deal with that number of people, the price is going to go up for everybody. If that is what the other side calls harmless, I shudder to think what their definition of ``harmful'' might be.

We should have and did stop this bill in its tracks. Voting no was a vote against Government-controlled drug lists, Government setting prices, and Government restrictions on seniors' access to drugs. That was the right thing to do today, and I am glad the vote came out the way it did. I hope it stays that way because if it ain't broke, don't fix it.

(Mr. Casey assumed the Chair.)

Mr. President, as the new Congress begins work, I am pleased to join with Senator Domenici in addressing one of the most serious and intractable problems facing the Nation--restoring the long- term fiscal health of Social Security and Medicare.

Today we propose a bipartisan, independent and permanently existing commission to return these essential programs to solid financial footing for generations to come.

Our legislation mandates the periodic, comprehensive review of Social Security and Medicare to ensure their present and future solvency. By a year from the date of enactment, it requires the Commission to devise and recommend to Congress and the President a benefit and revenue structure that allows Social Security and Medicare to become, once again, stable and effective.

A key aspect of the bill is that its mission is ongoing indefinitely. Every five years the Commission returns with new recommendations--small tweaks or larger adjustments, whatever is necessary--to keep these entitlement programs in actuarial balance.

Since 2005, the President, Congress and the Nation have stalemated over the issue of privatizing Social Security. The issue remains contentious. Recent press articles suggest the Administration would be prepared to drop carve out accounts as the price of overall reform.

Meanwhile, the Social Security funding shortfall is projected to balloon to roughly $4.6 trillion over the next 75 years to pay all scheduled benefits. This unfunded obligation has increased by $600 billion alone over the last year. Medicare is in far worse shape, needing $11.3 trillion over the next seventy-five years to close the gap and remain in balance.

The 2006 report from the Trustees of Medicare and Social Security is alarming to say the least. They describe the current path of spending for both as ``problematic'', ``unsustainable,'' ``severe'', and in ``poor fiscal shape.'' In sum the Trustees say that ``the problems of both programs are driven by inexorable demographics, and, in the case of Medicare, inexorable health care cost inflation, and are not likely to be ameliorated by economic growth or mere tinkering with program financing.''

Simple numbers tell the story: growing cash flow deficits will exhaust the Medicare trust fund in 2018, and Social Security reserves will be overcome in 2040, according to the Trustees report.

Our legislation takes a new approach and is bipartisan to the core. Instead of emphasizing the merits of one proposal over another, we wipe the slate clean.

Fifteen experts, some of whom are Members of Congress from the committees of jurisdiction, are appointed. They take a full year to conduct town hall meetings nationwide, assess these trillion dollar programs from top to bottom, and rationalize their cost structure through intensive evaluation.

We advocate an open process, where all American voices can be heard. We have learned in the last two years that these issues effectively surpass the Congress' and President's ability to reach a compromise.

Relying strictly on elected officials to meet privately and out of the public view to negotiate a multi-trillion agreement I believe risks more failure. We have no demonstrated track record since 2005 of being able to achieve bipartisan consensus. And there are no new developments of late that suggest a different outcome than more partisan gridlock.

I know Majority Leader Reid is instructing on certain members of the Senate to gather and discuss these issues in the coming months. I hope it works. But I basically share his outlook for the prospects of a bipartisan deal: ``It's a tremendous long shot. If you were a Las Vegas bookmaker, you'd put the odds pretty [long] for being able to do that.''

The Commission we propose would not be offering one-time solutions that get tossed aside and collect dust. Far from it: the Commission's detailed analysis, nonpartisan recommendations and findings are provided in writing and take the form of legislation that Congress formally considers.

The Senate and House, in turn, through expedited legislative procedures, will hopefully be poised to amend if need be and then enact the changes into law.

Compromise, in the form of increasing payroll tax revenues or other fees and cutting benefits, is the inevitable reality which we face. Senator Domenici and I are focused on creating a pathway to reach that compromise. We do not hold out, today, certain ideas that we believe Commission Members ought to consider.

We rely on their independent expertise and motivation to derive what is best for the Nation. Then we let the chips fall where they may from there.

The former Chairman of the Federal Reserve, Alan Greenspan, said two years ago that we had little time to waste in fixing Social Security. He endorsed the notion of establishing a Commission, much like the one he led in 1983 that led to historic changes in the program. His congressional testimony bears repeating:

This is not a hugely difficult problem to solve . . . And I

guess what is missing is the fact that at this stage there

has been a rather low interest in actually joining, in

finding out where some of the agreements are, and I have a

suspicion that when that occurs, that will happen. It may

well be that some mechanism such as that which we employed in

1983 may be a useful mechanism to get groups together and

find out where there are agreements. I tend to think what

happens in these debates is nobody talks about what they

agree about but only about what they differ about. And

something has got to give soon because we do not have the

choice of not resolving this issue.

Chairman Greenspan is absolutely right that it is only a matter of time that we implement Social Security reform. That is because 48 million people, or 1 out of every 6 Americans, depend on it. And by 2050, an astounding 82 million Americans will receive this guaranteed benefit.

For more than 20 percent of retirees, Social Security is it: their only source of income.

For half of those 48 million, Social Security keeps them out of poverty. And for almost two-thirds, Social Security makes up more than half of their total income.

4.8 million widows and widowers rely on Social Security, as do 6.8 million disabled workers and 4 million children.

The long-term challenges are significant. It is not a crisis, we have time to implement gradual reform over time, but we need to get started.

While the current projected shortfall for Social Security amounts to about $4.6 trillion, the fact of the matter is that 100 percent of benefits can be paid until 2040 by some estimates (Social Security Administration) or 2046 by

others (CBO). Beyond that time horizon, 73 percent of benefits can be paid.

So the bottom line is, there is time, the know-how, and the resources to be able to maintain the current system, with phased adjustments occurring over many years to the Social Security Trust Fund.

The key, of course, is coming to a rational consensus--Democrats and Republicans united--in the effort to make Social Security solvent from this day forward.

Most budget experts agree that the Social Security problem pales in comparison to the enormous shortfall facing the Medicare Trust Fund (Part A)--over the next 75 years a total of $11.3 trillion. The various technical estimates are that Medicare is projected to become insolvent far sooner than Social Security.

In fact the most recent Medicare Trustees report confirms that the trust fund will be exhausted in 2018, yet the number of beneficiaries skyrockets upwards--from 42.7 million now, a number which will double by 2030--as the Baby Boom generation ages.

Compounding the problem, the Congressional Budget Office projects that Medicare spending will rise to 11 percent of the gross domestic product by 2080, up from 3.21 percent of GDP in 2006.

And the number of those paying into the system gets smaller and smaller: in 2000, 4 workers supported every Medicare beneficiary. That number shrinks to 2.4 workers per beneficiary by 2030.

The plain truth is that surging health care costs need to come under control or Medicare faces a dire situation. Because the program is financed through payroll taxes on working Americans, and general tax revenue, the pressure is building now on working Americans, given the huge demographic changes we expect when Baby Boomers retire.

In closing let me share one pertinent fact from the Social Security and Medicare Trustees and their 2006 report: ``to the extent that changes are delayed or phased in gradually, greater adjustments in scheduled benefits and revenues would be required.'' The time to act is now, and Senator Domenici and I believe that our legislation represents a reasonable and good faith step for curing what ills these vital safety net programs.

Mr. President, I rise today to offer a bill with my colleagues Senators Snowe, Inouye, Durbin, Kerry, Boxer, Bill Nelson, Cantwell, Lautenberg, Lieberman, Menendez, and Collins to close the SUV loophole.

This bill would increase Corporate Average Fuel Economy, CAFE, standards for SUVs and other light duty trucks. It would increase the combined fleet average for all automobiles--SUVs, light trucks and passenger cars--from 25 miles per gallon to 35 miles per gallon by model year 2019.

The high price of oil is not a problem we can drill our way out of. Global oil demand is rising. China imports more than 40 percent of its record 6.4 million-barrel-per-day oil demand and its consumption is growing by 7.5 percent per year, seven times faster than the U.S.

India imports approximately 70 percent of its oil, which is projected to rise to more than 90 percent by 2020. Their rapidly growing economies are fueling their growing dependence on oil--which makes continued higher prices inevitable.

The most effective step we can take to reduce gas prices is to reduce demand. We must use our finite fuel supplies more wisely.

This legislation is an important first step to limit our Nation's dependence on oil and better protect our environment.

If implemented, closing the SUV Loophole would: save the U.S. 2.1 million barrels of oil a day by 2025, almost the same amount of oil we currently import from the Persian Gulf.

It would also prevent about 350 million tons of carbon dioxide--the top greenhouse gas and biggest single cause of global warming from being emitted into our atmosphere by 2025. This is an 18 percent reduction, the equivalent of taking 60 million cars--or 50 million cars and light trucks--off the road in one year.

This bill would also save SUV and light duty truck owners hundreds of dollars each year in gasoline costs.

CAFE standards were first established in 1975. At that time, light trucks made up only a small percentage of the vehicles on the road, they were used mostly for agriculture and commerce, not as passenger cars.

Today, our roads look much different, SUVs and light duty trucks comprise more than half of the new car sales in the United States. As a result, the overall fuel economy of our Nation's fleet is the lowest it has been in two decades, because fuel economy standards for these vehicles are so much lower than they are for other passenger vehicles.

The bill we are introducing today would change that. SUVs and other light duty trucks would have to meet the same fuel economy requirements by 2013 that passenger cars meet today.

In 2002, the National Academy of Sciences, NAS, released a report stating that adequate lead time can bring about substantive increases in fuel economy standards. Automakers can meet higher CAFE standards if existing technologies are utilized and included in new models of SUVs and light trucks.

In 2003, the head of the National Highway Traffic Safety Administration said he favored an increase in vehicle fuel economy standards beyond the 1.5-mile-per-gallon hike slated to go into effect by 2007. ``We can do better,'' said Jeffrey Runge in an interview with Congressional Green Sheets. ``The overriding goal here is better fuel economy to decrease our reliance on foreign oil without compromising safety or American jobs,'' he said.

With this in mind, we have developed the following phase-in schedule which would follow up on what NHTSA has proposed for the short term and remain consistent with what the NAS report said is technologically feasible over the next decade or so. As a first step, by model year 2010, passenger cars must meet an average fuel economy standard of 29.5 mpg, and SUVs and light trucks must meet 23.5 mpg. By way of comparison, passenger cars in model year 2005 averaged 30 mpg, light trucks averaged 21.8 mpg, and the overall combined fleet average is 25.2 mpg.

The bill also increases the weight limit within which vehicles are bound by CAFE standards to make it harder for automotive manufacturers to build SUVs large enough to become exempted from CAFE standards. Because SUVs are becoming larger and larger, some may become so large that they will no longer qualify as even SUVs anymore.

We are introducing this legislation because we believe that the United States needs to take a leadership role in the fight against global warming.

We have already seen the potential destruction that global warming can cause in the United States.

Snowpacks in the Sierra Nevada are shrinking and will almost entirely disappear by the end of the century, devastating the source of California's water.

Eskimos are being forced inland in Alaska as their native homes on the coastline are melting into the sea.

Glaciers are disappearing in Glacier National Park in Montana. In 100 years, the park has gone from having 150 glaciers to fewer than 30. And the 30 that remain are two-thirds smaller than they once were.

Beyond our borders, scientists are predicting how the impact of global warming will be felt around the globe.

It has been estimated that two-thirds of the glaciers in western China will melt by 2050, seriously diminishing the water supply for the region's 300 million inhabitants. Additionally, the disappearance of glaciers in the Andes in Peru is projected to leave the population without an adequate water supply during the summer.

The United States is the largest energy consumer in the world, with 4 percent of the world's population using 25 percent of the planet's energy.

And much of this energy is used in cars and light trucks: 43 percent of the oil we use goes into our vehicles and one-third of all carbon dioxide emissions come from our transportation sector.

The U.S. is falling behind the rest of the world in the development of more fuel efficient automobiles. Quarterly auto sales reflect that consumers are buying smaller more fuel efficient cars and sales of the big, luxury vehicles that are the preferred vehicle of the American automakers have dropped significantly.

Even SUV sales have slowed. First quarter 2005 deliveries of these vehicles are down compared to the same period last year--for example, sales of the Ford Excursion is down by 29.5 percent, the Cadillac Escalade by 19.9 percent, and the Toyota Sequoia by 12.6 percent.

On the other hand, the Toyota Prius hybrid had record sales in March with a 160.9 percent increase over the previous year.

The struggling U.S. auto market cannot afford to fall behind in the development of fuel efficient vehicles. Our bill sets out a reasonable time frame for car manufacturers to design vehicles that are more fuel efficient and that will meet the growing demand for more fuel efficient vehicles.

We can do this, and we can do this today. I urge my colleagues to support this legislation.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the Genetic Information Nondiscrimination Act of 2007 and I am joined in doing so by a number of my colleagues including the Chairman and Ranking Member of the Senate HELP Committee, Senators Kennedy and Enzi. The bill we are introducing today represents a triumph of bipartisan collaboration--true consensus-building which is so vital to achieving substantive action for our constituents. Such efforts are certainly not always easy--as so many here today know--I have worked with many of you for more than 10 years on this issue.

Today we are on the threshold of a new era, as for the first time, we act to prevent discrimination before it has taken firm hold. Indeed, Senator Gregg described this legislation so well when he said it is, truly, ``the first civil rights act of the 21st Century.''

And that is what makes this legislation so unique. For in the past Congress has had to act to address existing discrimination. But today we are acting proactively to address genetic bias, before discrimination becomes entrenched.

This type of discrimination is so different than other forms. Because most discrimination is a response to an obvious trait, such as one's gender or the color of your skin. But discrimination based on one's genetic makeup involves actively looking for information on which to discriminate. Because it is so deliberate, one cannot even argue it was--on any level--subconscious or unintentional.

It used to be difficult to find such information on which to discriminate. You might be asked if you had a family history of a disorder. But today things have changed dramatically.

We have long known about a small number of genes which play a role in some diseases--such as Huntington's Disease, and early onset Alzheimer's. Yet the progress of discovery and study was so slow and tedious. But the Human Genome Project changed all that. Today, with new technology we are seeing an explosive increase in our understanding of genetics and human health.

That growing genetic knowledge offers the potential of disease cures and even customized therapies. Even more promising, genetic advances will enable us to actually prevent the development of disease. But this potential . . . and the billions spent in discovering genetic relationships and developing treatments and preventive agents . . . will certainly be in vain if Americans do not avail themselves of these advances.

To do so, Americans will need to take genetic tests. But would you do so if you knew that the information about your genetic makeup would be used against you--to deny you employment or health coverage?

Some say that kind of discrimination is but a future possibility-- that we can afford to wait until genetic discrimination begins to take a toll. But it already has done so. I learned from the real life experience of one of my constituents, Bonnie Lee Tucker. In 1997, Bonnie Lee wrote me about her fear of having the BRCA test for breast cancer, even though she has nine women in her immediate family who were diagnosed with breast cancer, and she herself is a survivor. She wrote to me about her fear of having the BRCA test, because she worried it will ruin her daughter's ability to obtain insurance in the future. And Bonnie Lee isn't the only one who has this fear. When the National Institutes of Health offered women genetic testing, nearly 32 percent of those who were offered a test for breast cancer risk declined to take it citing concerns about health insurance discrimination. Mr. President, what good is scientific progress if it cannot be applied to those who would most benefit?

And we have seen cases where some attempted to mandate genetic testing. Even when this is done to improve the delivery of health care, it must be recognized that once that information is disclosed . . . and is unprotected . . . a future employer or insurer may not necessarily use that information in such a benign way. Yet we recognize that if an individual can avail themselves of a genetic test, they may be able to take action as a result which prevents disease or premature death, and reduces the burden of high health costs. And wouldn't everyone want to see that?

I recall the testimony before Congress of Dr. Francis Collins, the Director of the National Human Genome Research Institute, without whom we wouldn't have reached this day. In speaking of the next step for those involved in the Genome project, he explained that the project's scientists were engaged in a major endeavor to ``uncover the connections between particular genes and particular diseases,'' to apply the knowledge they just unlocked. In order to do this, Dr. Collins said, ``we need a vigorous research enterprise with the involvement of large numbers of individuals, so that we can draw more precise connections between a particular spelling of a gene and a particular outcome.'' Well, this effort cannot be successful if people are afraid of possible repercussions of their participation in genetic testing.

The bottom line is that, given the advances in science, there are two separate issues at hand. The first is to restrict discrimination by health insurers. The second is to prevent employment discrimination based simply upon an individual's genetic information.

Some of us saw this danger 10 years ago and the threat it could pose to millions of Americans. I think back to when Representative Louise Slaughter and I first introduced our bills to ban genetic discrimination in health insurance back in the l04th Congress. At that time the completion of the human genome seemed far away. But the science has certainly out-paced Congressional action.

The following year, with the commitment of Senators Frist and Jeffords to address this issue, I introduced a bill to ensure we would effectively provide the needed protections to prevent genetic discrimination in the health insurance industry. In turn, that bill was the basis for an amendment offered by Senator Jeffords, to the Fiscal Year 2001 Departments of Labor, Health and Human Services Appropriations bill which passed the Senate by a vote of 58-40.

While that victory was a notable step forward, unfortunately, it was not followed by the enactment of our bill. It did, however, re-spark the debate--which helped lay the foundation for our subsequent efforts.

Indeed, in March of 2002, I was again joined by Senators Frist and Jeffords in introducing an updated version of our bill with the added support of Senator Gregg and Senator Enzi. That bill not only addressed what had become the real threat of employment discrimination but also captured the changing world of science as this was the first bill to include what we had learned with the completion of the Genome Project.

In June of 2003, after sixteen months of bipartisan negotiation, we achieved a unified, bipartisan agreement to address genetic discrimination. Today we again introduce the legislation encompassing that agreement, which the Senate has twice passed . . . unanimously.

The bill we are introducing again today addresses genetic discrimination in both employment and health insurance based on the firm foundation of current law. With regard to health insurance, the issues are clear and familiar, and something the Senate has debated before, in the context of the consideration of larger privacy issues. Indeed, as Congress considered what is now the Health Insurance Portability and Accountability Act of 1996, we also addressed the issues of privacy of medical information.

Moreover, any legislation that seeks to fully address these issues must consider the interaction of the new protections with the privacy rule which was mandated by HIPAA--and our legislation does just that. Specifically, we clarify the protections of genetic information as well as information on the request or receipt of genetic tests, from being used by the insurer against the patient.

Because the fact of the matter is, genetic information only detects the potential for a genetically linked disease or disorder--and potential does not equal a diagnosis of disease. At the same time, it is critical that this information be available to doctors and other health care professionals when necessary to diagnose, or treat, an illness. This is a distinction that begs our acknowledgment, as we discuss protect patients from potential discriminatory practices by insurers.

On the subject of employment discrimination, unlike our legislative history on debating health privacy matters, the issues surrounding protecting genetic information from workplace discrimination is not as extensive. To that end, our bipartisan bill creates these protections in the workplace--and there should be no question of this need.

As demonstrated by the Burlington Northern case, the threat of employment discrimination is very real, and therefore it is essential that we take this information off the table, so to speak, before the use of this information becomes more widespread. While Congress has not yet debated this specific type of employment discrimination, we have a great deal of employment case law and legislative history on which to build.

Indeed, as we considered the need for this type of protection, we agreed that we must extend current law discrimination protections to genetic information. We reviewed current employment discrimination law and considered what sort of remedies people would have for instances of genetic discrimination and if these remedies would be different from those available to people under current law--for instance under the ADA or the EEOC. The bill we introduce today creates new protections by paralleling current law and clarifies the remedies available to victims of discrimination. Ensuring that regardless of whether a person is discriminated against because of their religion, their race or their DNA, these people will all receive the same strong protections under the law.

Indeed, I believe those who have questioned the need for this legislation will see that if we can provide these protections, then individuals can avail themselves of medical knowledge which will not only improve their health, but will reduce health care costs. For employers attempting to address the escalating cost of coverage, isn't it essential to utilize our investment in advancing medical knowledge to prevent disease and disability? Isn't that just the sort of action we need to encourage to reduce health costs and make our businesses, large and small, more competitive?

Indeed we have seen the business community recognizing the critical importance of putting our medical investment to work to reduce health costs . . . not discouraging employees from undergoing tests that could prevent disease or death. To that end, I noted during the last Congress that IBM pledged to not use genetic information in its hiring practices or in deciding eligibility for health insurance coverage. This demonstrates an admirable understanding of how such discrimination can harm both individuals and business.

It has been more than six years since the completion of the working draft of the Human Genome. Like a book which is never opened, the wonders of the Human Genome are useless unless people are willing to take advantage of it. This bill is the product of over a year of bipartisan negotiations and is a shining example of what we can accomplish if we set aside partisan differences in order to address the challenges facing the American people. Certainly this bill was only possible due to the commitment of members working together--setting aside partisanship--and for that I am grateful.

I know I speak for my colleagues when I say that it is my hope that we shall see this bill again receive the unanimous support of the Senate and that this will allow the House of Representatives to act swiftly to pass this legislation so that the President can sign this bill into law and finally ensure the American public is protected from this newest form of discrimination.

Mr. President, I rise to introduce The Secure Travel and Counterterrorism Partnership Act of 2007, along with my good friends Senators Akaka, Lugar, and Mikulski.

This legislation would expand the U.S. Visa Waiver Program in a way that would increase cooperation with key allies in the War on Terror while strengthening U.S. national security.

The bill provides a way for us to expand and improve the Visa Waiver Program so that Americans are safer and our Nation is more prosperous for years to come.

This legislation comes at a particularly important time in our Nation's history. We are currently facing multiple foreign policy challenges in the post-9/11 world. We need the cooperation of several allies to combat transnational threats. As such, we are asking our friends and allies to contribute more of their troops and resources to Iraq, Afghanistan, and other conflicts in the world, so that we can be successful. This legislation will help us to solidify key relationships and increase goodwill toward the U.S. for years to come, while also enhancing travel security standards and safety at home.

My legislation would authorize the Department of Homeland Security, in consultation with the Department of State, to expand the Visa Waiver Program to countries that are true friends of America and are prepared to do more to help us keep terrorists and criminals out of our borders.

For those that do not know about the Visa Waiver Program, it was established in 1986 to improve relations with U.S. allies and strengthen the U.S. economy. The program permitted nationals from the selected countries to enter the United States without a visa for up to 90 days for tourism or business purposes.

Currently, 27 countries participate in the program, including the United Kingdom. No countries have been added to the Visa Waiver Program since 1999. But there are a number of newer allies who would also like to participate in the Visa Waiver Program and are willing to meet strict security requirements and cooperate on counterterrorism initiatives.

Many of these countries were former members of the Soviet Union. They were victims of Soviet oppression for years, against their will, and despite their desire for freedom. These countries have a unique understanding of the struggle for democracy taking place in Iraq and Afghanistan. Today, many of these countries have had boots on the ground in Iraq and Afghanistan

and want to help the U.S. combat terrorism and promote democracy.

Despite their commitments to the principles of freedom and democracy, these countries are still paying a price that other countries in the West do not pay. Citizens of Portugal, the UK, or Spain can travel easily to the U.S., while citizens of Poland, Hungary, and Slovakia are given second-class treatment.

I recently learned of a story involving a young Czech officer who served in Iraq with Americans. This soldier wanted to come to America to visit the American friends he made during combat operations. But his application for a visa was refused. Why? Because his passport included a visit to Iraq, the very place he served with American soldiers.

Many young people from places like Latvia, Estonia, and Bulgaria have a positive view of America and hope to visit our country. However, their expensive visa applications are frequently rejected, dampening their spirits and tainting their image of America. And this view is spreading every day.

By limiting legitimate travel to the U.S., we are risking a loss of influence with the future leaders of our closest allies.

I have been working for many months to develop legislation that will expand the Visa Waiver Program, without sacrificing U.S. security. I was pleased last November when I heard President Bush announce his intention to work with Congress on this issue. On the margins of the NATO Summit in Riga, he called on Congress to expand the Visa Waiver Program so that we can reward our closest allies for their help and friendship.

I agree with the President--but I want to clarify that visa-free travel privileges are not simply a reward for our allies. The true reward is the knowledge that we are free and democratic countries working together to advance international security. The foremost goal of this legislation is to create mutually beneficial partnerships with clear national security advantages for the United States.

By continuing on the current path, we risk marginalizing some of our closest allies in the War on Terror and losing the hearts and minds of their future leaders and citizens. We have an opportunity to change direction in a way that will promote our own national security interests and improve control of our borders. The Secure Travel and Counterterrorism Partnership Act of 2007 can achieve all of these objectives.

The legislation would give the executive branch the necessary authority to expand visa-free travel privileges for up to five new countries, for a probationary period of three years.

In order for a country to participate in the plan, the executive branch would first need to certify that the country is cooperative on counterterrorism and does not pose a security or law enforcement threat to the United States. Prospective countries would also be required to take a number of new steps to enhance our common security.

Prior to participation, the countries would be required to conclude new agreements with the United States to further strengthen cooperation on counterterrorism and improve information-sharing about critical security issues.

Some might say--if these countries are key allies, aren't they cooperating with us already? The answer is yes. They are very cooperative. But in today's heightened security environment, there is more that each country can do, such as sharing additional sensitive information that can help our intelligence community and law enforcement agencies investigate threats and combat terrorist activity. By negotiating new agreements on counterterrorism and information- sharing to permit participation in the Visa Waiver Program, we can reduce threats to the United States. Additionally, the legislation would require the countries to enact a number of significant security measures, which would limit illegal entry and unlawful presence in their countries and impede travel by terrorists and transnational criminals. Security standards required for participation in the program would include electronic passports with biometric information, as well as prompt reporting of lost, stolen, or fraudulent travel documents to the U.S. and Interpol.

These new requirements would help make the U.S. more secure. Expanding the number of participating visa waiver countries would increase the number of states meeting common security standards. This would allow the United States to shift consular resources used to issue visas to other missions with more critical security needs.

If at any time, participant countries are not complying with these requirements, their probationary status in the program could be revoked.

Likewise, if the program is determined to be successful, it could be expanded to include additional countries.

The last part of the legislation is aimed at enhancing security requirements for countries who are currently participating in the Visa Waiver Program. In this post-9/11 world, the U.S. Government has already required additional security measures of participating visa waiver countries, such as machine readable passports with biometric information. But we can and must do more.

I was very pleased last November when Homeland Security Secretary Chertoff recommended several new measures to further enhance the efficiency and security of the Visa Waiver Program. His recommendations included an electronic travel authorization system, additional passenger information exchanges, common standards for airport security and baggage screening, cooperation in the air marshal program, and home country assistance in repatriation of any traveler who overstays the terms of their visa or violates U.S. law.

As the Administration works to develop the details of its recommendations, my legislation would require that within one year, the executive branch provide a report to Congress on its plans for Visa Waiver Program improvements.

In addition to the substantial benefits my legislation would create for U.S. foreign relations and homeland security, the bill would also advance U.S. economic competitiveness. Visa-free travel to the United States has been proven to significantly boost tourism and business, as well as airline revenues, and would generate substantial economic benefits to the United States well into the future. Additionally, it would improve attitudes toward the United States throughout the world, which would benefit the U.S. economy and national security for generations to come.

As a member of both the Foreign Relations and the Homeland Security and Governmental Affairs Committees, I have studied this issue from every angle. I believe the legislation I am introducing presents us with a real opportunity to strengthen diplomatic relationships, enhance our homeland security, and improve the Visa Waiver Program overall.

I look forward to working with my colleagues in the Congress and the President to move this legislation forward.

I ask unanimous consent that the text of this bill be printed in the Record.

Mr. President, today I am pleased to introduce legislation to reauthorize the District of Columbia Tuition Assistance Grant (D.C. TAG) program for an additional five years. This successful program, which began in 2000, has produced dramatic results in higher education in the District of Columbia by enabling District students to choose a college that best suits their educational needs.

One of the most worthwhile things I have done during my time in the Senate was to sponsor the legislation that created the D.C. TAG program. The aim of this program is to assist District students who do not have access to State-supported education systems. Originally, the D.C. TAG program provided District residents with grant funding to pay the difference between in-State and out-of-State tuition at State universities nationwide. D.C. TAG participants are eligible for up to $l0,000 per student per school year, capped at $50,000. Since March 2002, District students attending private institutions in Maryland and Virginia, as well as Historically Black Colleges and Universities nationwide are eligible to receive tuition grants of $2,500 per student per school year, capped at $12,500.

Since the programs inception, more than 26,000 grants have been dispersed to 9,769 District students, amounting to approximately $141 million. As a result, the District has seen a 50 percent increase in college attendance. Our States have benefited from having these talented students attending their universities. In Ohio, District students attend nine of our colleges and universities with grants valued at $500,000. Reauthorizing this successful program will ensure that D.C. TAG grants are available for future generations of deserving District high school students.

As the ranking member of the Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia, I am committed to ensuring quality educational opportunities for District residents. I urge all of my colleagues to support this legislation.

I ask unanimous consent that the text of the bill be printed in the Record.